More than any in recent memory, this year’s presidential race has pushed the First Amendment to the breaking point–and beyond. On one side of that fault line are communications that, despite having the sharpest of elbows, deserve full constitutional protection. On the other lies CBS’s excellent adventure in forgery. Rathergate merits the prosecution of anyone who knowingly trafficked in phony papers designed to throw a race for the White House.
President Bush’s critics have said plenty about him that goes well beyond civil discourse. Within the left lobe of the American political mind, G. W. Bush is Satan in a suit.
‐Stroll around Valencia and 20th Streets. This sunny section of San Francisco’s multiculti Mission District boasts bookstore window displays that squirt bile at America’s 43rd President. “Bad Terrorist/Good Terrorist” reads one handbill showing a split image of Osama bin Laden beside President Bush. Photographs capture Bush making unflattering faces while other pictures have been touched up to show Bush sporting the requisite square mustache.
‐Manhattan’s Union Square has become an American version of London’s Hyde Park Corner. Seemingly around the clock, speakers stand on boxes or directly on the sidewalk to denounce Bush for every discomfort under the sun. During the GOP convention, one protester there held a placard overhead that showed Bush, Dick Cheney, Donald Rumsfeld, and John Ashcroft beneath the slogan “No cash left behind.”
‐One block away, a particularly elegant foe of the president affixed a sticker to an East Village phone booth. It read, “Abort Bush: Terminate the Unwanted Presidency.”
‐According to Friday’s Wall Street Journal, Public Interest Research Group activists in Michigan, Pennsylvania, Wisconsin, and Florida planned to fly planes on Saturday over key football games with banners behind them that read: “Bush: Stop Mercury Pollution Now!”
‐While windsurfing the Internet, I happened upon an online poster from www.subvertise.org showing President Bush speaking at a podium while wearing clown make-up. He’s labeled as “Ronald McMurderer” in a satirical ad for an imaginary food chain called McPretzel. This doctored photograph illustrates the extent to which Bush is reviled by many of his detractors. It also is so over the top as to be inescapably hilarious.
While I differ with these communications, each and every one of them should be fully shielded by the First Amendment. Those who really believe Bush is a mercury-spewing, homicidal clown should be free to say so. Many Americans will disagree; if enough reject this viewpoint, Bush will be reelected. And if a sufficient number of voters can be persuaded that Bush’s policies constitute a deadly slapstick act, he will be dismissed to his Crawford, Texas ranch to juggle rubber balls and ride tiny tricycles.
The First Amendment, however, should not shield the person or people who forged government “papers” in Rathergate, CBS notorious use of now-discredited “documents” to impugn Bush’s service in the Texas Air National Guard. Mocking or cruelly degrading Bush is one thing. Tailoring records from whole cloth to libel him is altogether different.
Imagine that CBS’s story had aired on 60 Minutes not on Wednesday, September 8 but on Wednesday, October 27. Just six days before the general election, this story would have detonated like a rocket-propelled grenade.
“Bush shirked his service!” left-wing talk-show hosts would shriek. “He steered clear of the Mekong Delta!” Democratic activists would bellow. “And he even flopped as a weekend warrior!”
Even if the intrepid and industrious sleuths and fact checkers at littlegreenfootballs.com and other websites immediately sprang into action, they likely would have had insufficient time to debunk CBS’s story. It might not have been until after President-elect Kerry had selected Clintonite Sandy Berger as Pentagon chief that Bush would have been exonerated, and a key reason for his ouster would have evaporated like jet fuel on a hot tarmac.
Fake documents trample a line that even the most noisome poster or sticker acknowledges: the latter respect voters and aim to persuade them, albeit sometimes harshly, through communications clearly presented as political appeals. In contrast, the creators of artificial records disdain voters. Through trickery, they present to voters a false set of “facts” supposedly embedded in apolitical but damning “paperwork.”
All this explains why jail should await anyone who knowingly worked to get those bogus “documents” under Dan Rather’s nose and on the Columbia Broadcasting System. Rather and his team may be guilty of incredible sloppiness focused through uncritical eyes eager to air Bush’s embarrassing Guard “records.” One hopes they cannot be blamed for anything worse than that.
But someone, somewhere concocted the memos that supposedly “proved” that George W. Bush had help entering the Texas Air National Guard, ignored a direct order to get a physical exam, and otherwise shirked his duties. That person or people attempted to soil Bush’s reputation, sink him in the polls, and send him packing on November 2. Whoever did this didn’t bother to unearth real documents that would have illustrated Bush’s alleged sloth in the 1970s nor his supposedly devious claims today about what he did back then.
Instead, with enough actual malice to flood a cockpit, someone went to extraordinary lengths to concoct detailed “records” that could fool untrained eyes. They featured military jargon, names of Bush’s Guard colleagues, his parents’ former Houston address, and largely plausible dates. (One implausible date appeared in a “memo” from August 18, 1973. It showed Bush’s early commander, Colonel Walter B. “Buck” Staudt, involved in evaluating Bush. Unfortunately for CBS, Staudt retired from the Guard almost 18 months earlier. CBS explained, to nationwide belly laughs, that Staudt was a “mythic figure” who kept influencing Guard business even after shedding his uniform in spring 1972.)
There was a certain mischievous charm to Democratic dirty tricks of yore. Legendary campaign prankster Dick Tuck arranged for very pregnant women to attend rallies for Richard Nixon and wave signs that read, “Nixon’s the One.” Earlier, Tuck dressed up as a railway conductor and signaled a train engineer to leave the station, even as Nixon addressed voters from the platform of that train’s caboose.
But there is nothing remotely funny, cute, or endearing about what happened at CBS. These “documents” did not write themselves. Whoever created them tried to hoodwink the entire American electorate into ousting President Bush based upon carefully prepared, lying pieces of paper.
This monstrous endeavor to deceive America’s voters should be prosecuted. Columnist William Safire suggests that the federal fraud statute (U.S. Criminal Code, Chapter 63, Section 1343) is a good place to start. CBS asked former U.S. Attorney General Richard Thornburgh and former Associated Press chief Louis Boccardi to investigate this outrage. One hopes they will identify the responsible parties and refer them to the relevant law enforcement authorities in Austin, Albany, and Washington, D.C. In the end, this process should yield indictments.
Until Election Day, Americans freely should exhaust themselves with arguments, images, commercials, news stories, and other expressions for and against Bush, Kerry, or any other candidate, even when those utterances are obnoxious and nasty. But crafting government “documents” to bamboozle voters into defeating Bush or Kerry should trigger incarceration for the forgers, journalists, and anyone else who wittingly aimed to swindle the American electorate.